Expiring Warrantless Spy Bill to Be Reauthorized by Year's End

Share

Expiring Warrantless Spy Bill to Be Reauthorized by Year's End

Sen. Ron Wyden (D-Oregon).

Photo: Courtesy Sen. Ron Wyden

U.S. spies can rest easy knowing that the nation's warrantless wiretapping program – secretly employed by the President George W. Bush administration in the wake of the 2001 terror attacks – won't expire at year's end.

That's because Sen. Ron Wyden (D-Oregon) said Wednesday he would lift his procedural hold that bars the Senate from voting on the FISA Amendments Act, which the President Barack Obama administration maintains is its top national-security priority. The only real issue is for how many years the spy bill will be extended for and, according to Wyden, whether any transparency or privacy protections will be written into the spy program that Congress codified in 2008.

Other than that, it's a done deal.

"Nobody is coming up saying how can we let this expire," Wyden said in a telephone interview Wednesday while discussing the backroom, legislative jockeying on the issue.

The act, subject to a constitutional challenge by the American Civil Liberties Union and others before the Supreme Court, authorizes the government to electronically eavesdrop on Americans' phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed to be outside the United States. Communications may be intercepted "to acquire foreign intelligence information."

The FISA Amendments Act (.pdf) generally requires the Foreign Intelligence Surveillance Act Court, a secret tribunal set up in the wake of President Richard M. Nixon-era eavesdropping, to rubber-stamp terror-related electronic surveillance requests. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application.

Wyden has barred the Senate from a routine vote using a little-used legislative power – called a hold – to block lawmakers from taking a procedural consent vote. Instead, he demands a floor debate that can draw out the approval process indefinitely via the filibuster and through December 31, when the measure expires at midnight.

But Wyden stepped in to stop the bill because the government refuses to say how often the eavesdropping powers are being used to spy on Americans. Wyden asked the Obama administration a year ago for that information, but it refused.

So Wyden said he would lift his hold in exchange for a Senate floor vote on an amendment requiring the government to account for how many times Americans' communications have been accepted, and another amendment prohibiting U.S. spy agencies from reviewing the communications of Americans ensnared in the program.

If that doesn't go over, he'd lift the hold so the Senate could vote on brief extension of the act so his amendments and others could be fully debated next year.

"I'm willing to go along with a short-term extension as long as we have a chance in the early future, in 2013, to have a debate," Wyden said.

Even the ACLU, an ardent opponent of the spy bill, has conceded that Congress isn't going to let the FISA Amendments Act expire at year's end.

"I think there is a serious question of what it will look like and how long it will be for," Michelle Richardson, the ACLU's legislative counsel, said in a telephone interview.

Another amendment in the mix is one by Sens. Jeff Merkley (D-Oregon) and Mike Lee (R-Utah) requiring the publication of FISA Court opinions.

Senate Majority Leader Harry Reid (D-Nevada) has not set a time for a floor vote. The House would also have to approve whatever comes out of the Senate or the spy powers would expire.

Last month, the Supreme Court heard a challenge to the FISA Amendments Act. The Obama administration argues that the ACLU and a host of other groups suing don't have the legal standing to even bring a challenge.

A federal judge agreed, ruling the ACLU, Amnesty International, Global Fund for Women, Global Rights, Human Rights Watch, International Criminal Defence Attorneys Association, The Nation magazine, PEN American Center, Service Employees International Union and other plaintiffs did not have standing to bring the case because they could not demonstrate that they were subject to the warrantless eavesdropping.

The groups appealed to the 2nd U.S. Circuit Court of Appeals, arguing that they often work with overseas dissidents who might be targets of the National Security Agency program. Instead of speaking with those people on the phone or through e-mails, the groups asserted that they have had to make expensive overseas trips in a bid to maintain attorney-client confidentiality. The plaintiffs, some of them journalists, also claim the 2008 legislation chills their speech, and violates their Fourth Amendment privacy rights.